People ex rel. Walton v. Hicks , 158 N.Y.S. 757 ( 1916 )

Howaed, J.:

Dr. James S. Walton, the relator, was first appointed health officer of the city of Amsterdam in March, 1909. He was reappointed each year thereafter up to and including March 12, 1913. At the time of his first appointment section 9 of article 5 of the State Constitution read as follows: “Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive * * The Civil Service Law (Consol. Laws, chap. Y; Laws of 1909, chap. 15) was also in effect at the time of the relator’s original appointment and at the time of each subsequent appointment. One paragraph of section 8 of the Civil Service Law reads: “No officer or officers having the power of appointment or employment shall select or appoint any person for appointment, employment, promotion, or reinstatement, except in accordance with the provisions of this chapter and the rules and regulations prescribed thereunder.” The Constitution and the Civil Service Law were wholly ignored in the appointment of the relator. He never took an examination in order that his merit and fitness might be ascertamed, never qualified and never received a certificate. This was his status on April 8, 1913. On that day the relator did take a civil service examination and, having passed, received a certificate to that effect. On April ninth, following, he was again appointed to the position of health officer. Immediately after his appointment on March twelfth and on the same day he took the constitutional oath of office, which was filed in the office of the city clerk on the next day, but he did not take any oath of office within fifteen days after his appointment on April 9, 1913. He entered upon the performance of his duties, however, and continued in occupation of the office until March, 1914. On May 13, 1914, after some previous temporary expedients, Dr. Horace M. Hicks, a regularly licensed physician, whose eligibility had been duly certified by the Civil Service Commission, was appointed health officer.

The only question arising here is whether the failure of Dr. Walton to take his oath of office within fifteen days after his appointment on April 9, 1913, and after he had passed the civil service examination, vitiates his appointment and vacates the office. If the original appointment of the relator had been legal, we would have no hesitation in holding his reappointment on March 12, 1913, legal, and his oath of office taken on that day effective. (People ex rel. Wilson v. Knox, 45 App. Div. 537.) But the relator’s induction into office was originally illegal, and contrary to the Civil Service Law and to the Constitution, and, therefore, gave him no standing before the law, and constituted no test or certificate of his merit and fitness.

Section 1 of article 13 of the Constitution of the State requires all officers, except such inferior officers as shall be exempted, to take and subscribe the constitutional oath of office. This provision has been held to apply, and we hold it to apply, to the health officer of the city of Amsterdam. (People ex rel. Williamson v. McKinney, 52 N. Y. 374; Matter of Board of Health, 43 App. Div. 236.) Section 30 of the Public Officers Law (Consol. Laws, chap. 47; Laws of 1909, chap. 51) provides: “ Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof: * * His refusal or neglect to file his official oath or undertaking, if one is required, before or within fifteen .days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within fifteen days after notice of his appointment, or within fifteen days after the commencement of such term.” This statute is emphatic and unequivocal. It does not seem possible that it can be misunderstood. In case a person appointed to office neglects to file his official oath within fifteen days after notice of appointment or within fifteen days after the commencement of the term of office, the office becomes vacant, ipso facto. That is all there is to it. No judicial procedure is necessary; no notice is necessary; nothing is necessary. The office is vacant, as much so as though the appointee were dead; there is no incumbent, and the vacancy may be filled by the proper appointive power. That was exactly the situation here, and it, therefore, follows that the defendant, being properly qualified, was lawfully appointed to the position of health officer of the city of Amsterdam, and is now lawfully in possession of that position.

We have carefully examined the following authorities cited by the relator: Cronin v. Gundy (16 Hun, 520); Horton v. Parsons (37 id. 42); Adams v. Tator (42 id. 384); People ex rel. Willson v. Board of Trustees (59 id. 204); People ex rel. Brooks v. Watts (73 id. 404); People ex rel. Williamson v. McKinney (52 N. Y. 374); Cronin v. Stoddard (97 id. 271). We agree with.the learned trial court that “the reasoning of these cases does not apply to the case in hand.” But, if they may be thought to conflict in any respect with our conclusion here, in so far as they do so conflict, we are unable to follow them.

The judgment should be affirmed.

Judgment unanimously affirmed, with costs.